Volusia deputy fired for excessive force, breaking man's leg

A Volusia County deputy who injured a handcuffed man using a "leg sweep" take down was fired two weeks ago after the sheriff determined excessive force was used during the encounter.

On Tuesday, the Volusia County Council approved an $165,000 payment as an out-of-court settlement related to the incident, in which an arrested man's leg was broken.

Deputy Andrew Jenkins, 31, was previously cleared in the Sept. 28, 2016, incident by former sheriff Ben Johnson. Johnson said on Tuesday the decision was based on information that was provided to him at the time.

The case involving Jenkins was reopened after Sheriff Mike Chitwood's administration was provided with witness video. Chitwood said the video showed the move Jenkins used was not warranted.

Jenkins, in a letter to Chitwood, said he used a law enforcement measure to de-escalate a volatile situation he was facing with the suspect, Pablo Juarez.

Chitwood's decision to fire Jenkins is wrong, said Brodie Hughes, president of the Volusia County Deputies Association, the union that represents the Sheriff's Office deputies. The union will do everything it can to clear Jenkins' name, Hughes said.

On Sept. 28, 2016, Jenkins responded to the Academy of Career Training in Deltona for a disturbance shortly after midday on Sept. 28, 2016. When Jenkins got to the school on Deltona Boulevard he identified Juarez as the suspect, handcuffed Juarez’s hands behind his back and walked him away from a bus stop and some other people.

Video provided by witnesses and body worn camera footage from Jenkins show that Juarez, 57, used profanity toward the deputy from the beginning, but the recordings do not show physical resistance. But Jenkins reported that as they both walked away, Juarez resisted him. Then the suspect turned around and shouted “(expletive) you” at Jenkins. The deputy reacted by using a “leg sweep” take down on Juarez, investigators said.

Juarez immediately told Jenkins that his leg was broken. After seeing that Juarez was possibly injured, Jenkins drove him to Florida Hospital Fish Memorial in Orange City for treatment. Doctors at the hospital discovered that Juarez had suffered a “plateau fracture” just below his knee, the report states.

Juarez did not return a message left on his phone's voicemail Tuesday and no one answered the door at his Deltona home.

Court records show Juarez was not prosecuted on charges of resisting an officer without violence and trespassing. He did plead no contest to disorderly conduct. Juarez has been arrested several times in the past, pleading no contest to similar charges — including resisting police — eight years ago.

The original investigation

A supervisory inquiry into Jenkins' September 2016 actions was conducted under former sheriff Johnson, including viewing the footage from the deputy’s body-worn camera. The results of the investigation were presented to Johnson, who “deemed Deputy Jenkins’ use of force as justified,” an internal affairs report shows.

Johnson said on Tuesday that from what he can recall, he made the decision of justifying Jenkins' actions based on the information the supervisory inquiry generated and the review of the body-worn camera footage. There was no other video at that time, Johnson said.

"To the best of my knowledge I was working on the information that I had at the time," Johnson said. "There had been no complaint, nobody had complained about deputy Jenkins' actions then."

But the case was reopened on Dec. 26, 2017, by Chief Deputy John Creamer after Volusia County’s legal department received a witness video showing another angle of Jenkins kicking Juarez's legs from under him, reports state.

In that video, it was clear that Jenkins had used excessive force that resulted in the injury to Juarez, Chitwood said.

"Clearly, in my heart I believe Deputy Jenkins used excessive force and that's not how we train," Chitwood said. "At the conclusion of the investigation, I had no other choice but to terminate Deputy Jenkins. This was not, in my opinion, a justifiable use of force."

Chitwood further said that Jenkins's report of the incident does not match what was seen in the amateur witness video.

"The deputy says that he (Juarez) was thrashing about, that he was trying to get away and he had to gain the suspect under control," Chitwood said. "In my opinion he just got tired of being cursed at and he took justice into his own hands. I can't have that."

In a letter Jenkins wrote to Chitwood after learning that he was being fired, Jenkins said he was not given the opportunity to give a statement as provided by the Law Enforcement Officers' Bill of Rights.

Jenkins explained to Chitwood in his letter that Juarez was becoming more combative and aggressively tugging and that he tried everything possible with verbal commands. After it became obvious Juarez was not going to listen to his verbal commands, and concerned for the safety of people and students at the school, Jenkins said he "was forced to take immediate action to protect myself and others as well as prevent the escape of the defendant."

Jenkins wrote that the State Attorney's Office agreed his reports tracked what was seen in the witness video.

"My reaction to the defendant's resistance was not malicious," Jenkins wrote. "My actions were not performed with the intent of inflicting injury to the defendant and were only meant to try to deescalate a volatile situation."

Jenkins ended his letter by saying, "Videotape can never capture all the factors experienced during the encounter."

The second inquiry

In the second Internal Affairs investigation, it was determined that Juarez had multiple contacts with the Volusia Sheriff’s Office and the Daytona Beach Police Department and that he had either been arrested or taken into custody under Florida’s Baker Act law. Reports by law enforcement showed that Juarez displayed erratic, sometimes violent behavior, the report states.

Research did not show Jenkins and Juarez having contact before Sept. 28, 2016, so investigators could not determine if Jenkins was aware of Juarez’s mental state or behavioral issues, documents indicate. Court records show Juarez had been taken into involuntary custody for mental evaluation twice previously in Volusia County.

Edward Hart, a 14-year deputy who has been in the agency's training section for 10 years, reviewed the video and concluded that Juarez was not actively resisting and Jenkins inappropriately used the “leg sweep” on Juarez. Hart is also a staff member at Daytona State College School of Emergency Services and an instructor in defensive tactics. He said the “leg sweep” is used when a suspect is actively or physically resisting an officer.

“As a result of the “leg sweep,” Mr. Juarez sustained a plateau fracture of his left tibia bone just below the knee,” investigators concluded in their report.

Jenkins refused to answer investigators' questions on the advice of his attorney, Nancye Jones, investigators said.

Jones said in an interview with The News-Journal on Tuesday that Jenkins declined to be interviewed because investigators did not talk to any other identifiable witnesses besides Hart, which is a violation under the Officers' Bill of Rights.

Jones said she will appeal Jenkins' case and is working on getting a hearing for Jenkins with the county's personnel board. The deputy is also entitled to arbitration and ultimately a lawsuit for wrongful termination, Jones said.

"We are definitely exploring that possibility," Jones said. "The video wasn't an accurate representation of what deputy Jenkins was feeling at the time of the encounter with Mr. Juarez."

Jones said Jenkins is a good deputy "whose life is being ruined."

According to sheriff's spokesman Andrew Gant, Jenkins was hired in 2015 and has eight commendations including two medals of merit and a medal of valor earned in an encounter with an armed person who fired a flare gun at him.

On Jan. 18, the investigation into Jenkins was put on hold pending a criminal investigation by the State Attorney’s Office. Prosecutors informed the Sheriff's Office on Feb. 26 that they were not filing criminal charges on Jenkins, the report states.

So, on March 26, the findings of the second internal affairs investigation were presented to Chitwood, who determined that Jenkins violated eight agency policies that included Jenkins using excessive force resulting in injury, and being willfully neglectful in the performance of his duties and incompetent in the performance of his duty.

Jenkins was fired April 2, but the county was left facing a potential lawsuit from Juarez. So on Tuesday the Volusia County council approved a settlement of $165,000 to Juarez.

County officials said they preferred to settle with Juarez rather than go to jury trial where it faced the possibility of paying a larger settlement amount, case paperwork shows.

“Mr. Juarez sustained a fracture of his left knee cap (tibial plateau) that required extensive surgery and rehabilitative care,” the county said in its meeting agenda minutes.

Hughes said on Tuesday the witness video was not new as Jenkins knew he was being recorded.

"The witnesses refused to provide the video when the incident occurred," Hughes said. "The defendant then presented the video during his (criminal) jury trial."